Merit Systems Protection Board Hearings

➤ Summary of the EEOC Hearing Process:

Jurisdiction:

The US Merit Systems Protection Board (MSPB or the Board) has a jurisdiction over certain federal employment issues. (For private employment cases, see EEOC Process.)

MSPB has jurisdiction over federal Agency actions involving reduction in grade or pay, removal, suspension of more than 14 days, furlough of 30 days or less, and other appealable actions.

MSPB has jurisdiction over violations of Veterans' Preference in hiring/promotion pursuant to Title 5 U.S.C. Section 3330a(d)(1). The Board has jurisdiction over denied promotion in retaliation for whistleblowing. See 5 U.S.C. § 2302(a)(2)(A)(i). It also has jurisdiction over denied promotion in discrimination based on uniformed service. See 38 U.S.C. §§ 3311, 4324.

US Postal employees cannot appeal to MSPB unless he or she is a managerial employee, a supervisory employee, or a personnelist; or is eligible for veterans' preference.  See 5 U.S.C. Chapter 75 governing MSPB's jurisdiction. However, he or she may appeal to MSPB if he or she is partially recovered from a compensable injury such as injuries pertaining to the Workers' Compensation Program. See 5 C.F.R. Section 353.304(c). Under certain circumstances, a restoration (of light duty position) may be so unreasonable as to constitute a denial of restoration that is within the MSPB's jurisdiction. See Myrick v. US Postal Service, 21 M.S.P.R. 79, 81 n.2 (1984).

Probationary federal employees can appeal on a limited bases (i.e., on issues involving adverse actions mentioned above involving partisan politics and other violations, but not for discrimination under Title VII or violation of Douglas Factors; see Title 5 C.F.R., § 315.806).  

MSPB has jurisdiction over appeals from Office of Personnel Management (OPM) reconsideration decisions. See 5 U. S. C. § 8461(e)(2); 5 C. F. R. § 841.308.

The MSPB appeal form (186) contains useful information regarding its jurisdiction and the types of federal employment laws the MSPB enforces.

If an appeal is filed with MSPB, the Agency (the defendant) has the burden of proof before the Board to justify its action adversely taken against you for which you have appealed to the Board. In addition to discrimination matters, the Douglas Factors, the Prohibited Personnel Practices, and other issues under the Board jurisdiction are appealable to the Board.

MSPB appeals can be filed online by visiting: www.mspb.gov>>>File Appeal>>>New Appeal. Click the button bellow to get started.

Removal Based On Unacceptable Performance:

However, when an individual is removed from federal employment based on unacceptable performance under US Code Title 5, Part III, Chapter 43 (check your SF-50 to see if Chapter 43 is cited), the Douglas Factors do not apply.  Rather, Agency in such cases must substantiate that:

1.  the individual's performance failed to meet the established performance standards in one or more critical elements of his position;
2.  the agency established performance standards and critical elements and communicated those to the individual at the beginning of the performance appraisal period;
3.  the agency warned the individual of the inadequacies of his performance during the appraisal period and gave him an adequate opportunity to improve; and
4.  after an adequate improvement period, the individual's performance remained unacceptable in at least one critical element.

Removal Based on Unacceptable Conduct:

When an individual is removed from federal employment based on unacceptable conduct issues under US
Code Title 5, Part III, Chapter 75, Agency must consider the Douglas Factors when considering the disciplinary
actions.    

Mixed Cases:

MSPB may consider appealable actions (by Agency) involving unlawful discrimination in a "mixed case" (including removal as result of denied reasonable accommodations). You must raise discrimination as part of your affirmative defense. If you do, you assume the burden of proof for establishing discrimination.

An Affirmative Defense Order will be issued whenever discrimination, whistleblower retaliation, or any other claims are raised as affirmative defense in MSPB appeal.  Appellant must respond to the Order laying out the facts and evidence along the line laid out by AJ in the Order. See an Order regarding affirmative defense and a response to the Order.  

• (Generally, "constructive discharge" issues involving non-probationary federal employees are appealable only to the MSPB, and not to EEOC.  See EEOC's Equal Employment Opportunity Management Directive; 29 C.F.R. Part 1614, (EEO-MD-110) ("MD-110"), Chapter 4, Section II.B., pages 4-2 through 4-5.  "When allegations of discrimination are alleged in connection with an alleged involuntary resignation or retirement, they may be addressed only insofar as they are related to the issue of voluntariness.  The Board will not consider whether such evidence meets the test for proof of discrimination established under the civil rights laws ... or ... on prohibited personnel practices.  See ...71 MSPR 574, 578-80 (1996); ... 53 MSPR 434, 438-39 (1992)."  Sited from a Judge's conference report (SF 0752-07-0642-I-1).)

Any and all disciplinary actions less than 15-day suspensions are not considered by MSPB except as a background information or as part of the affirmative defense, if raised, involving discrimination claims (in a case within the MSPB's jurisdiction such as a "mixed case").  You can present disciplinary actions of less than 15-day suspensions to establish the pattern of discriminatory practice, if you want to argue that your removal or suspension of 15 days or more was the culmination of the continuing discriminatory practice by the Agency.

Filing MSPB Appeal after filing a formal discrimination complaint on removal or other appealable actions:

You may file MSPB appeal within 30 days after receipt of the Agency resolution or final decision on the EEO complaint or at any time after the expiration of 120 calendar days from the formal EEO complaint if the agency has not resolved the matter or has not issued a final decision.  See 5 C.F.R. Section 1201.154(b).  See MSPB AJ's decision accepting an appeal filed after 120 days of a formal EEO complaint with no issuance of Final Agency Decision at the time of appeal.  

Advice: If you missed the 30-day deadline (after removal) for filing an MSPB appeal, you may file an EEO on your removal within 45 days of removal, wait for 120 days for investigation to take place, and then file an MSPB appeal on your removal (if Report of Investigation has not been issued).  This way, you may have MSPB hearing faster than EEOC hearing.  (EEOC hearing can be requested after 180 days from filing a formal EEO complaint).

Requesting the Board Review of the Arbitration Decision involving Discrimination Claims:

In non-postal cases, requests for review of arbitration decisions properly are reviewed by the full Board and not by the Board’s administrative judges.  See 5 U.S.C. § 7121(d);  Ariza v. Department of Education, 36 M.S.P.R. 54, 55 n.1 (1988). Request for review must be sent to:

       The Clerk of the Board
       Merit Systems Protection Board
       1615 M Street, NW.
       Washington, DC  20419

Or, if the case has MSPB docket number, e-file at www.mspb.gov>>>File Appeal>>>Pleading. Click the button below to get started.

A request for review of an arbitrator’s decision must be filed within 35 days after the date of issuance of the decision, or, if the appellant shows that the decision was received more than five days after the date of issuance, within 30 days after the appellant received the decision.  5 C.F.R. § 1201.154(d).  

The scope of the Board’s review of an arbitrator’s award is limited; such awards are entitled to a greater degree of deference than initial decisions issued by the Board’s administrative judges.  Weaver v. Social Security Administration, 94 M.S.P.R. 447, ¶ 8 (2003); Higgs v. Social Security Administration, 71 M.S.P.R. 48, 50 (1996).  The Board will modify or set aside an arbitration decision only where the arbitrator has erred as a matter of law in interpreting civil service law, rule, or regulation. Weaver, 94 M.S.P.R. 447, ¶ 8. Absent legal error, the Board cannot substitute its conclusions for those of the arbitrator, even if it would disagree with the arbitrator’s decision.  Id.  

From Brent v. Department of Justice, 100 M.S.P.R. 586 (2005). 

MSPB Hearing:

• Note: MSPB (or "the Board") does not recognize or may not be aware of the Agency's (EEO) Investigative File, including the Report of the Investigation or Final Agency Decision rendered on EEO matters, unless you submit it (or parts of it) to MSPB as evidence before the hearing.  

Once your appeal is accepted, the MSPB administrative judge issues an Acknowledgment Order and Scheduling Order to set up a pre-hearing conference and a hearing.  These Orders must be adhered to, as they contain important deadlines.  If you miss the deadlines, your case may be severely weakened as result.  The Order governs the protocols pertaining to the entire hearing process and proceeding.  It contains the important deadlines pertaining to filing a motion, responding to a motion, pre-hearing requirements, etc.  (See below for more detail.)  See a sample of Acknowledgment Order.

Judges are required to issue a decision within 180 days of appeal (to MSPB).  So, unlike EEOC hearings, MSPB hearings move swiftly.

You have a right to request relevant and material information and documents from the Agency.  This right can be exercised by engaging in the discovery authorized by the judge via Acknowledgment Order, which involves serving the Agency counsel your Interrogatories and Request for Production of Documents.  The discovery request must be initiated within 20 days of issuance of the Acknowledgment Order.  See Discoveries for more information.

The Agency is required to file its narrative response to your appeal along with Agency File within 20 days of issuance of Acknowledgment Order.  The Agency narrative response, along with the attachments therein, is admitted as part of the Board's record, which can be referred to during the hearing. Discovery must begin within 30 days of issuance of Acknowledgment Order.  But it is better to wait until Agency File is submitted (by Agency counsel), so that you can requests documents and serve interrogatories on what Agency produced in its narrative response and in Agency file. 

After discovery period has elapsed, you will be asked to file a prehearing report.  Your prehearing report should include an inventory of documents and a list of witnesses and their contact information; statement of facts and argument; and supporting documents you want to submit as part of the hearing record.  Documents in your prehearing report should be marked as exhibits in alphabetical order.   (See the Acknowledgment Order for specific guideline.)  

Some AJ's want the copies of exhibits to be submitted along with the Prehearing Report.  Some AJ's want only the list of exhibits in the prehearing report and want actual copies at the hearing.

If you did not list a document as an exhibit, you won't be able to use it at the hearing.  The prehearing report is designed to avoid any "trial by ambush."  No one wants to be surprised at the hearing.  No hidden evidence is allowed to be used at the hearing.  (Exception: if a record was not available or could not be obtained by the prehearing report submission date, and it had surfaced afterwards, you may be able to use it at the hearing.)  

If you do not introduce an exhibit at the hearing (during examination of a witness), it will not become part of the hearing record.  AJ won't be able to use it as evidence.  So, make sure that such records are submitted at the hearing and accepted by AJ (over Agency's likely objection).

All submissions must be served to the judge and to the Agency's designated counsel with a certificate of service attached. There is a short discovery period within which you can send interrogatives for the Agency's decision maker to respond and can demand the Agency to produce documents.  The Agency will most likely require you to respond to its interrogatories and request for document production as well.  Discovery requests must be sent to the agency counsel, not to the judge.  Any problems or unresolved issues during the discovery period can be addressed by filing a motion to the judge.  

MSPB does not consider any motion for a decision without a hearing or for a summary judgment, as EEOC does.

At the prehearing conference--which is usually conducted by phone among the judge, you (the appellant) and Agency counsel--the issues to be addressed at the hearing are identified and determined (issues involving the adverse actions in question, affirmative defense if any, etc.); and the witnesses and the exhibits are disputed and determined.  After the prehearing conference, the judge should issue a conference report summarizing the prehearing discussions, determinations, and the rulings if any.  

At the MSPB hearing (which can also be conducted via phone or video conference) the judge announces the issues to be examined.  The order of the witness appearance may be decided between the parties.  Since the Agency has the burden of proof (for taking the adverse action in question), Agency management witnesses are usually called first before Complainant or her witnesses. The witnesses are questioned, cross-examined, and re-crossed and re-addressed.  Evidence are presented or referred to from the prior submissions admitted into record.  The closing arguments from both sides are heard.  Judges like to complete the hearing within a day or two.  The hearing transcript may be purchased from the Board once it is made available in order to cite testimonies or AJ's conduct, if you want to file a Petition for Review (to challenge AJ's Initial Decision).

The judge's decision may be appeal for a further review by the Board.  The Board's review, however, will only address issues involving judge's legal errors involving application of law or procedural rulings, omission of facts or evidence, misinterpretation of facts or evidence, and on judge's abuse of discretion, if any.

If and when the Board issues a decision on a "mixed case," the appellant may petition OFO (Office of Federal Operations) for review of the Board's decision concerning discrimination claims only.